Contemporary Transatlantic Developments Concerning Compelled Medical Treatment of Pregnant Women

Abstract

This paper had identified a contemporary ethicolegal dilemma concerning the circumstances, if any, in which a pregnant woman's refusal of medical treatment may be judicially overridden either in her interests or those of the unborn child. On the one hand, the obstetrician will be concerned about the interests of both his patients in potentially life-threatening situations when they can be protected by what might be regarded as relatively straightforward procedures and where to fail to take those steps might expose the practitioner (at least outside New Zealand where its accident compensation legislation has impact in this regard) to allegations of negligence. On the other hand, the imposition of treatment in these circumstances will necessarily interfere with the woman's rights of autonomy and self-determination. In such cases also, the conduct of medical procedures in the face of an express prohibition by the woman may give rise to liability for battery. (In New Zealand, such a potential liability would not, in the writer's view, be affected by the prohibition on proceedings for damages for medical misadventure as contained in the Accident Rehabilitation and Compensation Insurance Act 1992.) At the heart of an analysis of this issue is the status of the fetus as it is the fact of the woman patient's pregnancy which distinguishes the cases discussed in this paper from others in which the Courts have had to deal with refusals of treatment by those competent to do so. In regard to this aspect, the approach of the Courts in various jurisdictions has arguably been confused and contradictory.(ABSTRACT TRUNCATED AT 250 WORDS)